2025(03)LCX0317

Karnataka High Court

Fortune Healthcare Services

Versus

The Assistant Commissioner Of Commercial Taxes

WRIT PETITION NO. 30042 OF 2024 decided on 20-03-2025

IN THE HIGH COURT OF KARNATAKA A

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF MARCH, 2025

BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

WRIT PETITION NO.30042 OF 2024 (T-RES)

BETWEEN:

M/S FORTUNE HEALTHCARE SERVICES
A PARTNERSHIP FIRM REGISTERED
UNDER THE INDIAN PARTNERSHIP ACT, 1932
HAVING ITS OFFICE AT
MEZZANINE FLOOR SHOP NO.M-5
DOOR NO15-2-T-78/08
SHILPA PALACE OPPOSITE
COLACO HOSPITAL
BENDOORWELL
MANGALURU - 575 002
REPRESENTED BY ITS
MANAGING PARTNER
SRI. CHANDRAHAS SHETTY
S/O LATE SRI THIMMAPPA SHETTY
AGED ABOUT 44 YEARS

                                                                          …PETITIONER

(BY SMT. VANI H., ADVOCATE)

AND:

1. THE ASSISTANT COMMISSIONER
OF COMMERCIAL TAXES
LGSTO-262, 3RD FLOOR
VANIJA THERIGE BHAVANA MANGALURU – 575 001.

2. THE DEPUTY COMMISSIONER OF
COMMERCIAL TAXES
AUDIT-4 D G S TO 2ND FLOOR
VANIJA THERIGE BHAVANA BEHIND PWD COMPLEX
MANAGALURU – 575 001.

3. THE STATE OF KARANATKA
DEAPRTEMNT OF FINANCE
REPRESENTED BY ITS
SECRETARY
AMBEDKAR VEEDHI VIDHANA SOUDHA
BENGALURU - 560 001.

…RESPONDENTS

(BY SMT. JYOTI M. MARADI, HCGP)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED INTIMATION BEARING NO.DCCT(AUDIT-4) MNG/GST/2023-24 DATED 23.11.2023 VIDE ANNEXURE-B AND THE SHOW CAUSE NOTICE BEARING NO. DCCT(AUDIT-4) MNG/GST AUDIT/2023-24 DATED 13.12.2023 ISSUED UNDER SECTION 73 OF THE GST ACT BY THE RESPONDENT NO.2 FOR THE FINANCIAL YEAR 2018-19 VIDE ANNEXURE-C AS VOID OF SECTION 6(2(b) OF THE GST ACT; AND ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

In this petition, petitioner seeks for the following reliefs:

a. Issue a Writ of Certiorari or writ in the nature of certiorari to quash the impugned intimation bearing
No. DCCT(Audit-4)Mng/GST/2023-24 dated 23.11.2023 vide ANNEXURE B and the show cause notice bearing No. DCCT(Audit-4)Mng /GST Audit/2023-24 dated 13.12.2023 issued under Section 73 of the GST Act by the second respondent for the financial year 2018-19 vide ANNEXURE C as void of Section 6(2)(b) of the GST ACT.

a.a. Issue a writ of certiorari to quash the Show Cause Notice dated 09.12.2023 and to adjudication order along with summary order dated 06.03.2024 passed by I respondent vide Annexure-A1 and Annexures-D & D1.

b. Issue a Writ of Certiorari or writ in the nature of of certiorari to quash the impugned order bearing No. DCCT(Audit-4) Mng/GST/2023-24 dated 06.03.2024 passed by second respondent under Sections 73, 50, 122 of KGST Act/ CGST Act read with Section 4, 5, 20 of the IGST Act and Rule 6, 142(5) of KGST Rules/CGST Rules, 2017 for the year 2018-19 vide ANNEXURE E.

c. Issue a Writ of Certiorari or writ in the nature of certiorari to quash the impugned summary order bearing reference No. ZD290324015466E dated 06.03.2024 for the year 2018-19 issued by the second respondent vide ANNEXURE -E1.

d. Issue a Writ of Certiorari or writ in the nature of certiorari to quash the impugned endorsement bearing No. DCCT/ADT-4/MNG/M/2024-25 dated 01.10.2024 issued by the second respondent refusing to rectify the arithmetical error vide ANNEXURE H.

e. Issue of a Writ of Mandamus or a writ in the nature of Mandamus directing the respondents to give credit to payment of tax on 26.03.2024 vide ANNEXURE-F towards the demand raised by the respondents.

f. Issue of a Writ of Mandamus or a writ in the nature of Mandamus directing the respondents to rectify the summary order by considering the amounts paid by petitioner, in terms of the representation dated 27.09.2024 filed by petitioner vide ANNEXURE G

g. Pass such other orders as may be deemed appropriate under the circumstances of the case, in the ends of justice.

2. A perusal of the material on record will indicate that on 30.03.2023, respondent No.1-Assistant Commissioner issued a pre-intimation under Section 73(5) of the KGST Act, 2017, calling upon the petitioner to pay the differential tax amount for the tax period 2018-19. Similarly, respondent No.2 – Deputy Commissioner also issued similar intimation dated 23.11.2023 to the petitioner.

3. Subsequently, both respondent No.1 – Assistant Commissioner and respondent No.2 – Deputy Commissioner issued two separate Show Cause Notices under Section 73(1) of the KGST Act dated 13.12.2023 and 19.12.2023 respectively, which culminated in the adjudication proceedings and passing of two separate adjudication orders both dated 06.03.2024 by respondent Nos.1 and 2 under Section 73(9) of the KGST Act and since the request of the petitioner before respondent No.2 to rectify the demand, which was rejected, petitioner is before this Court by way of the present petition.

4. Learned counsel for the petitioner submitted that simultaneous/dual/parallel proceedings by respondent Nos.1 and 2 is impermissible in law and in view of the principles underlying Section 6(2)(b) of CGST/KGST Act, which specifically prohibits simultaneous/dual/parallel proceedings by Central and State Authorities, the impugned order passed by respondent Nos.1 and 2 deserves to be quashed.

5. Per contra, learned AGA submits that there is no merit in the petition and the same is liable to be set aside.

6. As rightly contended by learned counsel for the petitioner, respondent No.1-Assistant Commissioner and respondent No.2-Deputy Commissioner have ventured to initiate simultaneous/dual/parallel proceedings in relation to the same year 2018-19 by putting forth the very same contentions against the petitioner, which is clearly impermissible in law and consequently, the impugned orders passed by respondent Nos.1 and 2 deserves to be quashed by reserving liberty in favour of the respondent No.2 – Deputy Commissioner to proceed further in accordance with law.

7. In the result, I pass the following:

                                  ORDER

i) The petition is hereby allowed.

ii) Intimation dated 13.03.2023, Show Cause Notice dated 13.12.2023 and the order dated 06.03.2024 issued/passed by respondent No.1 is hereby quashed.

iii) Impugned orders at Annexures-E and E1 dated 06.03.2024 passed by respondent No.2 are hereby quashed.

iv) Matter is remitted back to respondent No.2 for reconsideration afresh in accordance with law to the stage of replying to Show Cause Notice dated 19.12.2023 issued by respondent No.2 to the petitioner.

v) Petitioner shall appear before respondent No.2 on 24.03.2025 without awaiting further notice.

vi) Respondent shall treat the proceedings as one under Section 73(9) of the Act and pass appropriate orders on or before 26.03.2025.

vi) Immediately upon the respondent passing appropriate orders against the petitioner under Section 73(9) of the Act as stated (supra), the petitioner would be entitled to file application/requisition seeking the benefit of GST Amnesty Scheme under Section 128A of the Act, which shall be considered by respondent who shall pass appropriate orders/take appropriate decision immediately thereafter.

vii) It is made clear that this order is passed in the peculiar / special facts and circumstances of the instant case and that this order shall not be treated as a precedent nor shall the same have any precedential value for any purpose whatsoever.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE